JOSÉ A. CABRANES, Circuit Judge.

In December 2001, in the midst of a severe financial crisis, the Republic of Argentina ("Argentina" or "the Republic") declared a moratorium on principal and interest payments for more than $80 billion in sovereign debt, including bonds that were issued under a Fiscal Agency Agreement ("FAA"). Pursuant to two "exchange offers" in 2005 and 2010, Argentina "restructured" over 91% of the then-existing FAA bonds.1

Plaintiffs-appellees EM Ltd. ("EM") and NML Capital, Ltd. ("NML") (jointly, "plaintiffs") own FAA bonds that were not restructured. Since 2001, Argentina has refused to make any scheduled payments on these defaulted bonds. In 2003, plaintiffs filed suit in the United States District Court for the Southern District of New York, seeking to recover their unpaid principal and interest. Plaintiffs eventually obtained judgments against Argentina, which now total approximately $2.4 billion.

This appeal concerns plaintiffs' ongoing efforts to satisfy their judgments against Argentina by attaching funds held by Argentina's central banking authority, the Banco Central de la República Argentina ("BCRA"). In their third amended complaint ("TAC"), plaintiffs seek a declaratory judgment that BCRA is Argentina's "alter ego" and that, therefore, BCRA is liable for Argentina's debts. If successful, plaintiffs' stated intent is to use the declaratory judgment to attach unspecified funds that BCRA holds in unnamed foreign jurisdictions.

As an instrumentality of a sovereign state, BCRA is ordinarily immune from lawsuits in American courts under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq. ("FSIA").2 Accordingly, BCRA moved to dismiss the TAC for lack of subject matter jurisdiction on sovereign-immunity grounds, as well as for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. On September 26, 2013, the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge) issued an order denying BCRA's motion.

Relevant to this appeal, the District Court concluded that BCRA had waived its sovereign immunity under two statutory exceptions. First, the District Court held that the FAA's express waiver of sovereign immunity also waived BCRA's immunity — under 28 U.S.C. § 1605(a)(1)3 — because BCRA is Argentina's "alter ego." Second, the District Court held that BCRA's use of its account with the Federal Reserve Bank of New York ("FRBNY") constituted "commercial activity" in the United States, which waived BCRA's sovereign immunity under 28 U.S.C. § 1605(a)(2).4

Because neither of these statutory exceptions applies to this case, the District Court erred in denying BCRA's motion to dismiss for lack of subject matter jurisdiction. Accordingly, we REVERSE the District Court's order of September 26, 2013, and we REMAND the cause with instructions to dismiss the TAC with prejudice.

BACKGROUND

I. The Underlying Debt

In 1994, Argentina began issuing debt securities pursuant to a Fiscal Agency Agreement ("FAA bonds"). In light of Argentina's "history of defaulting on, or requiring restructuring of, its sovereign obligations,"5 investors demanded that the FAA include a waiver of Argentina's foreign sovereign immunity as to "any suit, action, or proceeding against it or its properties, assets or revenues with respect to the" FAA bonds, and any suit brought "for the purpose of enforcing or executing" a judgment obtained in a related proceeding.6 Argentina agreed to include this waiver of sovereign immunity in the FAA.7

In December 2001, Argentina declared a moratorium on principal and interest payments on more than $80 billion of foreign debt, including the FAA bonds.8 Since 2005 and 2010, Argentina successfully restructured over 91% of its debt by launching "global exchange offers," pursuant to which creditors holding the defaulted bonds could exchange them for new securities with modified terms that substantially reduced their value.9 Plaintiffs EM and NML own FAA bonds that were not restructured.

Beginning in 2003, plaintiffs filed multiple actions against Argentina in the Southern District of New York in an effort to recover the full amounts due on their defaulted bonds. Argentina did not dispute that its sovereign immunity had been waived in the FAA. Plaintiffs eventually obtained numerous final judgments against Argentina, which now total approximately $2.4 billion.10 These judgments remain unpaid.

II. Litigation Against BCRA

On December 15, 2005, Argentina's President, Néstor Kirchner, issued two emergency executive decrees — Decree 1599/2005 and Decree 1601/2005 (jointly, the "Decrees") — both of which involved funds held by BCRA.11 The first decree provided that reserves held by BCRA in excess of the amount needed to support Argentina's monetary base12 could "be used for payment of obligations undertaken with international monetary authorities."13 The decree labeled these excess reserves "unrestricted reserves." The second decree directed the Ministry of Economy and Production to take the necessary steps to repay Argentina's debt to the International Monetary Fund ("IMF") out of the unrestricted reserves. As we previously noted:

Soon after these Decrees were issued, plaintiffs made their first attempt to satisfy their judgments against Argentina by attaching funds held by BCRA. On December 30, 2005, plaintiffs moved in the Southern District of New York for an ex parte order to restrain funds held by BCRA. Plaintiffs asserted that the Decrees had the effect of transferring ownership of certain BCRA assets — including funds held in BCRA's account with the FRBNY — from BCRA to Argentina. The District Court entered temporary restraining orders with respect to, inter alia, the property held by BCRA in eight garnishee banking institutions, including the FRBNY.15

On January 12, 2006, the District Court vacated the temporary restraining orders.16 Plaintiffs appealed the District Court's decision, maintaining that the Decrees amounted to an expropriation by Argentina of BCRA's assets in order to pay Argentina's debt to the IMF, and that, consequently, the funds in BCRA's FRBNY account had become Argentina's property.

On January 5, 2007, we rejected plaintiffs' argument and affirmed the District Court's order, holding that "the Decrees did not alter property rights with respect to the FRBNY Funds" because they "did not create an attachable interest on the part of [Argentina] in the FRBNY Funds."17 Although we thus rejected plaintiffs' transfer-of-ownership argument, we noted the difference between two theories of attachment — (1) that "the Decrees transferred to the Republic ownership or control over the assets of BCRA"; and (2) that Argentina controlled "BCRA itself" — i.e., that BCRA was Argentina's alter ego.18 We concluded that plaintiffs had not established that BCRA's funds were transferred to Argentina, but we noted that plaintiffs' allegations regarding Argentina's "misdeeds ... might have lent some credence to" the alter-ego theory.19 That is, we suggested that plaintiffs could potentially argue that BCRA was "so extensively controlled by [Argentina] that a relationship of principal and agent is created," or that recognizing BCRA's separate juridical status would "work fraud or injustice"20 — and that, if successful, this claim would subject all of BCRA's assets to potential attachment by Argentina's judgment creditors.

In September 2006, while BCRA I was pending, plaintiffs commenced a new action seeking a declaratory judgment that, pursuant to First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) ("Bancec"), BCRA was liable for Argentina's debts. Specifically, plaintiffs argued that Argentina's consistent disregard for BCRA's independence had vitiated any presumption of separateness to which BCRA was entitled, transforming BCRA into Argentina's "alter ego."

In this new action, plaintiffs also pursued attachment orders against BCRA's FRBNY funds based on this alter-ego theory. On April 7, 2010, the District Court granted plaintiffs' attachment motions and ruled that, at the time of BCRA's repayment of Argentina's debt to the IMF (December 2005), BCRA was Argentina's alter ego.21 The District Court also concluded that the attachment of BCRA's FRBNY funds did not violate § 1611(b)(1), which immunizes "property ... of a foreign central bank ... held for its own account." Accordingly, the District Court authorized the attachment of the $105 million deposited in BCRA's FRBNY account.

This order was appealed and in 2011, in BCRA II, we vacated the attachment on the sole ground that the funds held in BCRA's FRBNY account were "immune" from execution under § 1611(b)(1).22 We declined to reach the District Court's alter-ego determination and instead concluded that these funds were immune from attachment "without regard to whether the [BCRA] is independent from its parent state pursuant to Bancec."23 We thus intimated no view as to "whether the District Court correctly determined that [Argentina's] control of BCRA was sufficient to disregard the presumption of juridical separateness under Bancec."24 Accordingly, we vacated the District Court's attachment orders with respect to the FRBNY funds and remanded the cause to the District Court for further proceedings.

III. This Case Upon Remand

On remand, plaintiffs filed the TAC — the operative complaint for purposes of this appeal.25 Pursuant to our ruling in BCRA II, funds held in BCRA's accounts with the FRBNY are immune from attachment. Accordingly, the TAC is framed more broadly — the declaratory judgment it seeks would establish: (1) that BCRA is the alter ego of Argentina; and (2) that BCRA is thus liable for any and all of Argentina's debts.26 Plaintiffs' stated purpose for seeking this judgment is to enable them to attach any asset held by BCRA anywhere in the world in satisfaction of their judgments against Argentina.27 This option was arguably left open by BCRA II, which foreclosed the possibility of attaching assets deposited in BCRA's own accounts in the United States, but did not otherwise address plaintiffs' ability to reach BCRA assets elsewhere.

In November 2012, Argentina and BCRA moved to dismiss the TAC for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. Oral argument on this motion was held at a conference of the District Court on September 25, 2013. Plaintiffs argued that BCRA had waived its sovereign immunity on two grounds. First, plaintiffs asserted a theory of implied waiver — that is, because BCRA is the alter ego of Argentina, Argentina's express waiver of immunity in the FAA should be imputed to BCRA.28 Second, plaintiffs asserted that BCRA waived its immunity by engaging in "commercial activity" in New York through its FRBNY account.29

In denying the motion to dismiss, the District Court explicitly adopted plaintiffs' arguments for jurisdiction. In its bench order, the District Court stated:

This appeal followed.31

DISCUSSION

I. Appellate Jurisdiction

In general, our appellate jurisdiction is limited to "final decisions" of district courts;32 the District Court's order here is interlocutory. BCRA asserts, however, that we have jurisdiction under the "collateral order" exception to review BCRA's claim of sovereign immunity as a defense to subject matter jurisdiction.33

Under this exception, an interlocutory appeal is available for "a small class of `collateral' rulings that do not terminate the litigation in the court below but are nonetheless sufficiently `final' and distinct from the merits to be appealable without waiting for a final judgment to be entered."34 To fit within the exception, the interlocutory order must: (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment."35

A denial of foreign sovereign immunity generally satisfies the conditions necessary to invoke the collateral order doctrine.36 For instance, in Rein v. Socialist People's Libyan Arab Jamahiriya,37 we held that all three prongs of the above test were satisfied because: (1) the district court's ruling on sovereign immunity conclusively determined the issue of subject matter jurisdiction; (2) the issue of jurisdiction is separate from the merits; and (3) an appeal from final judgment cannot repair the damage caused to a sovereign that is improperly required to litigate a case.38

Notwithstanding the collateral-order doctrine, plaintiffs assert that we lack appellate jurisdiction here because the "immunity question cannot be decided without addressing [plaintiffs'] underlying claims on the merits."39 According to plaintiffs, BCRA's alter-ego status is a predicate to holding that the FAA's sovereign-immunity waiver binds BCRA and, therefore, resolving the immunity issue now would require an unnecessary and burdensome inquiry into the extent of Argentina's control over BCRA. Accordingly, plaintiffs urge us to defer review until the District Court issues a final judgment.40

These arguments are unpersuasive. We have consistently held that the threshold sovereign-immunity determination is immediately reviewable under the collateral-order doctrine.41 In fact, this case is similar to U.S. Fidelity & Guaranty Co. v. Braspetro Oil Services Co.,42 in which we also reviewed the denial of a motion to dismiss brought by a purported foreign-state alter ego, and in which we held that a court reviewing a district court's sovereign-immunity decision must assess whether plaintiffs "have made a sufficient showing [of alter ego] at this point in the litigation."43 As the Supreme Court has held, "a question of immunity is separate from the merits of the underlying action... even though a reviewing court must consider the plaintiff's factual allegations in resolving the immunity issue."44

At this stage in the case, we must (1) assume the truth of the TAC's factual allegations, and then (2) assess whether these allegations are sufficient to establish that BCRA waived its sovereign immunity. If we are able to determine conclusively that the pleadings do not establish, as a matter of law, that BCRA waived its sovereign immunity, it would be inconsistent with the underlying purpose of the foreign-sovereign-immunity doctrine to subject BCRA to further burdensome litigation.45

Accordingly, we conclude that we have jurisdiction under the collateral-order doctrine to review the District Court's threshold determination that BCRA waived its sovereign immunity pursuant to 28 U.S.C. § 1605(a)(1) (the express waiver exception) and 28 U.S.C. § 1605(a)(2) (the commercial activity exception).46

II. Sovereign Immunity

Moving to the merits of this appeal, the sole issue we consider is whether the District Court erred in its conclusion that BCRA waived its sovereign immunity. We review this conclusion de novo.47

There is no dispute that BCRA is an instrumentality of Argentina and that, unless one of the FSIA's exceptions applies, BCRA is entitled to invoke its sovereign immunity as a defense to this lawsuit.48 Here, the District Court concluded that two exceptions applied. First, it held that the FAA's express waiver of sovereign immunity under § 1605(a)(1) is imputable to BCRA (as Argentina's "alter ego"). Second, it held that BCRA's use of its account at the FRBNY constituted "commercial activity" in the United States within the meaning of § 1605(a)(2).

We address each exception in turn.

A. Alter Ego

1. Legal Standards

The controlling case for when an instrumentality of a sovereign state becomes the "alter ego" of that state is First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) — known as Bancec. In Bancec, the Supreme Court created a presumption that "government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such."49 According to the Court,

The Supreme Court drew support for this proposition in the legislative history of 28 U.S.C. § 1610(b),51 the provision of the FSIA addressing the circumstances in which a judgment creditor may execute upon the assets of a foreign government's instrumentality:

Therefore, Bancec recognizes a statutory "presumption that a foreign government's determination that its instrumentality is to be accorded separate legal status" will be honored.53 But this presumption of separateness may be rebutted by evidence establishing an alter-ego relationship between the instrumentality and the sovereign state that created it. Specifically, the presumption may be overcome and an alter-ego relationship established if: (1) the instrumentality "is so extensively controlled by its owner that a relationship of principal and agent is created"; or (2) the recognition of an instrumentality's separate legal status would work a "fraud or injustice."54 As we previously noted, "both Bancec and the FSIA legislative history caution against too easily overcoming the presumption of separateness."55

2. Analysis

Under Bancec, we are thus required to presume that BCRA is legally separate and distinct from Argentina. This presumption is overcome only if the TAC alleges facts sufficient to establish that either: (1) Argentina so extensively controlled BCRA that a relationship of principal and agent was created; or (2) recognizing BCRA as a separate entity would work a fraud or injustice.56

For the reasons that follow, neither prong of this test has been satisfied. Therefore, the presumption that BCRA is separate from Argentina has not been rebutted. Because Argentina's express waiver of sovereign immunity in the FAA does not apply to BCRA, plaintiffs' reliance on the § 1605(a)(1) exception necessarily fails.

a. Extensive Control

We address first Bancec's "extensive control" prong. While measuring the level of control exercised over an instrumentality by a foreign sovereign is fact-intensive, courts have articulated several indicia to guide the inquiry.57 Among the factors that have been deemed relevant are whether the sovereign nation: (1) uses the instrumentality's property as its own; (2) ignores the instrumentality's separate status or ordinary corporate formalities; (3) deprives the instrumentality of the independence from close political control that is generally enjoyed by government agencies; (4) requires the instrumentality to obtain approvals for ordinary business decisions from a political actor; and (5) issues policies or directives that cause the instrumentality to act directly on behalf of the sovereign state.58 These factors are relevant to answering the touchstone inquiry for "extensive control": namely, whether the sovereign state exercises significant and repeated control over the instrumentality's day-to-day operations.59

BCRA was founded in 1935 as Argentina's Central Bank.60 By statute, it is "a self-administered institution," which is charged with acting as Argentina's agent and depository before international monetary, banking, and financial entities, as well as with regulating the Argentine banking system and financial sector.61 BCRA's primary responsibility is to maintain the value of legal tender in Argentina — accordingly, it shall "exclusively issue banknotes and coins in the Argentine Nation," and "invest a portion of its external assets in deposits or other interest-bearing transactions with foreign banking institutions."62 Moreover, BCRA is managed by an independent Board of Directors appointed by the "National Executive Power" with the consent of the national Senate.63 BCRA has the authority to purchase and sell property, hold accounts, and sue and be sued in courts under its own name.64

Thus far, "on paper," BCRA appears to be a typical government instrumentality entitled to separate legal status.

However, plaintiffs argue, and the District Court presumably accepted, that BCRA's formal independence is belied by Argentina's extensive control over BCRA's day-to-day operations. Plaintiffs attempt to buttress this conclusion with three categories of factual allegations. Nonetheless, even if we assume the truth of all of them, these facts do not support a claim of "extensive control," because whatever control Argentina exerted was not tied to BCRA's day-today operations.

First, the TAC alleges that Argentina systematically eliminated BCRA's legal independence by: (1) permitting the President to appoint BCRA officers for an unspecified period without Senate approval; and (2) removing BCRA governors who supported the central bank's independence from the executive branch.65 But courts have consistently rejected the argument that the appointment or removal of an instrumentality's officers or directors, standing alone, overcomes the Bancec presumption.66 The hiring and firing of board members or officers is an exercise of power incidental to ownership, and ownership of an instrumentality by the parent state is not synonymous with control over the instrumentality's day-to-day operations. Governments commonly exercise some measure of control over their instrumentalities, much like parent corporations commonly control certain aspects of otherwise independent subsidiaries. Missing from plaintiffs' allegations are any claims that Argentina's appointment of board members then caused it to interfere in and dictate BCRA's daily business decisions. Ensuring that a board of directors of an instrumentality shares the sovereign's goals and policies for the instrumentality is not, by itself, extensive control. The sovereign must instead use its influence over these directors in order to interfere with the instrumentality's ordinary business affairs.

Second, the TAC alleges that Argentina issued executive decrees and legislative amendments to make it easier for the government to borrow from BCRA, and that Argentina subsequently borrowed tens of billions of dollars from BCRA in order to pay Argentina's debts to the IMF and other private creditors (but not to these plaintiffs).67 However, as the United States argued before us as amicus in BCRA II,68 the repayment by BCRA of Argentina's other debts does not establish the existence of an alter-ego relationship, because "central banks commonly perform payment functions for their governments, including central banks that are relatively independent from their governments."69 Although the United States also argued that the IMF's status as a preferred creditor justified the payments,70 that question goes to whether Argentina's choice to pay one set of creditors over another was legitimate — an inquiry that is unrelated to whether Argentina controlled BCRA in order to accomplish those payments.

Here, the Republic's plan to borrow money from BCRA was not executed by the Argentine government alone. Instead, the proposals received the necessary review and approval by BCRA's legal advisers and BCRA's Board of Directors,71 and one BCRA Governor testified before Argentina's Congress that it made policy sense to permit the government to borrow funds from BCRA while its reserves earned relatively low interest.72 Therefore, the Republic's decision to use BCRA to repay its debt to the IMF and other creditors is not indicative of the extensive control that concerned the Supreme Court in Bancec.73

Finally, the TAC alleges that Argentina and BCRA coordinated their activities in implementing an "inflationary" monetary policy.74 However, governments and central banks — including the U.S. Government and the U.S. Federal Reserve — often consult and coordinate their actions with respect to monetary policy.75 Whether the resulting policy is considered by some commentators as too "inflationary" or "deflationary" is irrelevant to the question of whether Argentina exercised day-to-day control over BCRA. It is not our role to second-guess monetary policy decisions made by foreign governments. We thus agree with the position of the United States in BCRA II — "central banks ordinarily have a high degree of interaction with their parent foreign governments," and as such, "courts should give significant deference to a foreign government's conduct vis-à-vis its central bank."76 The alleged "coordination" of monetary-policy actions between Argentina and BCRA is simply not sufficient to establish "extensive control."

Considered cumulatively, these allegations certainly establish that the Republic sought the assistance of BCRA in responding to an extremely severe debt crisis, and that Argentina took steps to ensure that BCRA shared its policies and goals during this time. They do not establish, however, that the Republic so extensively controlled BCRA's day-to-day operations as to transform BCRA into the Republic's alter ego. Most of the actions allegedly taken by BCRA are governmental functions performed by most central banks — i.e., paying a nation's creditors, controlling currency flows, and keeping foreign exchange deposits. Plaintiffs have not sufficiently alleged that these actions, or any others, were the result of Argentina's substantial control over the business decisions or daily functions of BCRA.77 Thus, these actions, standing alone, are not the type of activities that illustrate a complete takeover of BCRA's day-to-day operations by the Republic.78

Because the facts alleged do not establish that the Republic exercised extensive control over BCRA's day-to-day operations, the first prong of the Bancec test has not been met.

b. Fraud or Injustice

The second prong of the Bancec alter-ego test asks whether the recognition of BCRA as a separate entity would work a "fraud or injustice." The purpose of this prong is to prevent foreign states from "avoid[ing] their obligations by engaging in abuses of corporate form."79

For instance, in Bancec itself,80 the presumption that Cuba's instrumentality — Bancec — was a separate juridical entity was rebutted, because Cuba had dissolved Bancec and taken complete control of its assets in 1961. Because Cuba effectively absorbed Bancec, the Supreme Court granted Citibank recourse against Cuba as the controlling principal and real beneficiary of the lawsuit that Bancec had filed against Citibank. Similarly, in Bridas S.A.P.I.C.,81 the Fifth Circuit found "fraud or injustice" where Turkmenistan dissolved a state-owned oil company that was in breach of a joint venture with plaintiff, and replaced it with an under-capitalized state-owned oil company endowed with newly-enacted immunity protection. And in an unpublished district court case relied on by plaintiffs, Kensington International Ltd. v. Republic of Congo,82 the Republic of Congo structured its relationship to its purportedly independent oil company by, inter alia: (1) designing the company's corporate structure to allow Congo to engage in "unnecessarily complex transactions and charades for the purpose of confounding its creditors";83 (2) passing all proceeds from oil sales on to the government, rather than permitting the company to exercise its right to collect a percentage on transactions; and (3) commingling state and company assets.

The common thread in these cases is that the sovereign states at issue abused the corporate form. In Bancec, Cuba sought relief in a court of the United States while simultaneously trying to shield itself from liability by asserting its claim through its dissolved instrumentality. In Bridas, Turkmenistan transferred assets from one instrumentality to another in order to escape liability.84 And in Kensington, Congo created a "sham" entity with purported sovereign immunity in order to shield its own assets from judgment creditors.

Plaintiffs' allegations here fall far short of the flagrant frauds and injustices exhibited in these other cases. At bottom, plaintiffs' claim is that it would be a fraud or injustice to allow Argentina to use funds from BCRA to pay certain "preferred" creditors while at the same time "stiffing" plaintiffs. As noted above, at least in the case of the IMF, there is nothing irregular or fraudulent about Argentina recognizing a preference for repaying one set of creditors over another.

Moreover, plaintiffs do not allege that BCRA's separate juridical status has been actively used by Argentina to block plaintiffs' enforcement attempts against Argentina itself, or that Argentina has transferred its funds to BCRA in order to shield them from plaintiffs. Although plaintiffs do allege that BCRA transferred some of the funds deposited in its FRBNY account to the Bank of International Settlements in Switzerland, this action did nothing to frustrate plaintiffs' ability to collect on their judgments against Argentina. As we held in BCRA II, funds deposited in BCRA's own account were in any event immune from attachment.85 Therefore, as a practical matter, BCRA was only guilty of moving funds from one attachment-proof account to another.

Plaintiffs' factual allegations simply do not show that Argentina has used BCRA to frustrate the collection efforts of its creditors, or that Argentina treated BCRA as a "sham" entity to hide its own assets. These allegations simply do not establish that the recognition of BCRA's separate status would work a "fraud or injustice" within the meaning of Bancec.

Because the TAC fails to counter, much less overcome, the presumption that BCRA and Argentina are legally separate entities, BCRA does not constitute Argentina's "alter ego" for the purposes of this suit. Argentina's express waiver of its own sovereign immunity in the FAA, therefore, may not be imputed to BCRA. Accordingly, we conclude that the express waiver exception — § 1605(a)(1) — does not apply to this case.86

B. Commercial Activity

The second exception to sovereign immunity relied upon by the District Court is the "commercial activity" exception codified at 28 U.S.C. § 1605(a)(2), which, in relevant part, provides that a foreign state is not immune in an action "based upon a commercial activity carried on in the United States." This exception applies only when there exists "a degree of closeness" between the gravamen of plaintiffs' complaint and the commercial activities engaged in by the foreign state or instrumentality.87

Here, the gravamen of the TAC is that BCRA, as Argentina's purported alter ego, is liable for the judgments resulting from Argentina's default on its FAA bonds.88 As noted above, BCRA was not a party to the FAA and was not involved in Argentina's decision to cease making principal and interest payments on FAA bonds. Therefore, the gravamen of plaintiffs' claim on the merits is based on a series of actions taken by BCRA after 2001.

However, none of these actions after 2001 — loans made by BCRA to Argentina, coordination of monetary policy, the appointment and removal of BCRA governors — are commercial activities that occurred in the United States.89 In fact, BCRA's only alleged commercial activity in the United States was its use of its FRBNY account to purchase dollars. Plaintiffs assert that these dollars allowed BCRA to make loans to Argentina, which Argentina then used to repay dollar-denominated debts to creditors other than plaintiffs.90

The fact that these dollars were delivered to BCRA's account with the FRBNY, however, is entirely incidental to plaintiffs' claim on the merits — that claim would be no different had BCRA deposited those dollars in any other bank abroad. In this way, plaintiffs' claims are similar to those asserted in Kensington International Ltd. v. Itoua.91 There, a creditor of the Republic of Congo alleged that a state-owned oil company had entered into prepayment agreements in exchange for oil rights, which caused Congo's oil revenues to be diverted away from the creditor. The creditor attempted to invoke the FSIA's commercial activity exception on the grounds that: (1) the oil at issue was shipped to the United States; and (2) the premium payments were made in the United States. We rejected the creditor's argument, however, reasoning that the requisite nexus did not exist between the commercial activity in the United States (the shipment of oil and the premium payments), and the gravamen of the complaint (the prepayment agreements executed in France). Because the alleged activity in the United States was entirely incidental to the improper conduct, we declined to apply the commercial-activity exception to waive sovereign immunity.92

As in Kensington, the claim here also lacks any nexus between BCRA's commercial activity in the United States (the purchase of dollars through the FRBNY account) and the gravamen of the complaint (the alter-ego claim, which turns on loans made by BCRA to Argentina in Argentina). It is similarly incidental that BCRA purchased these dollars using an account in the United States. Whatever adverse consequences plaintiffs allegedly suffered from the BCRA's loans to Argentina, they would have suffered the same consequences had BCRA used any other bank account in the United States or abroad.

Accordingly, adopting plaintiffs' theory for jurisdiction here would dramatically expand the scope of the commercial-activity exception to sovereign immunity. Any allegation of the wrongful use of dollars outside the United States would conceivably lead to a sovereign immunity waiver, so long as the plaintiff could show that these dollars were acquired in U.S.-based transactions. Given New York's role as a financial center, every country and every central bank would be at risk of losing their sovereign immunity on this basis. As the United States argued as amicus in BCRA II, weakening the immunity from suit or attachment traditionally enjoyed by the instrumentalities of foreign states could lead foreign central banks, in particular, to "withdraw their reserves from the United States and place them in other countries. Any significant withdrawal of these reserves could have an immediate and adverse impact on the U.S. economy and the global financial system."93

Because such a capacious understanding of the commercial-activity exception is inconsistent with the FSIA's presumption that foreign states and instrumentalities enjoy sovereign immunity, we decline to adopt plaintiffs' proposed rule. Accordingly, we hold that the commercial-activity exception to sovereign immunity — § 1605(a)(2) — does not apply to this case.

CONCLUSION

We do not condone or excuse Argentina's continuing failure to pay the judgments duly entered against it by the District Court. Our decision that BCRA may invoke its own sovereign immunity in this lawsuit is not intended to allow the Republic to avoid its bargained-for obligations, or to continue shirking the debts it has the ability to pay, although we suspect that this will be a predictable and unfortunate outcome of our decision.

Nonetheless, BCRA is entitled to invoke its own sovereign immunity as a defense to this lawsuit, unless one of the exceptions codified in the Foreign Sovereign Immunities Act ("FSIA") applies. Because both of the exceptions relied upon by plaintiffs fail as a matter of law, the District Court erred in denying BCRA's motion to dismiss under the FSIA.

In summary, we hold the following:

(1) We have jurisdiction under the collateral-order doctrine to review the District Court's threshold determination that BCRA waived its sovereign immunity pursuant to 28 U.S.C. § 1605(a)(1) (the express waiver exception) and 28 U.S.C. § 1605(a)(2) (the commercial activity exception).

(2) First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) ("Bancec") sets a high bar for when an instrumentality will be deemed an alter ego of its sovereign state. On these facts, neither prong of the Bancec test is satisfied — Argentina does not exercise sufficiently extensive control over BCRA's day-today operations, and recognizing BCRA's separate status would not constitute a "fraud or injustice" within the meaning of Bancec. Accordingly, Argentina's sovereign-immunity waiver in the FAA may not be imputed to also waive BCRA's independent sovereign immunity.

(3) BCRA's use of its FRBNY account is too incidental to the gravamen of plaintiffs' claim to serve as the basis for waiving BCRA's sovereign immunity under the commercial-activity exception to the FSIA.

Accordingly, we REVERSE the District Court's order of September 26, 2013, and we REMAND the cause with instructions to dismiss the Third Amended Complaint with prejudice.